Kenneth Starr was the guest speaker at the Atlanta chapter of the Federalist Society's January luncheon on Jan. 17, 2019. The event was held at Kilpatrick Stockton's Atlanta office.

Attorneys for the House are asking a judge in Washington, D.C., to lift a stay he placed on their lawsuit seeking President Donald Trump's federal tax returns, arguing that Trump's impeachment lawyers have contradicted Justice Department attorneys over standing issues in the case that the judge has raised concerns about.

U.S. District Judge Trevor McFadden of the District of Columbia paused the case earlier this month, noting that a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit had raised concerns over whether the House could go to court against the executive branch in the lawsuit seeking former White House counsel Don McGahn's testimony. He said he would make a decision on how to let the tax case proceed after the appellate court panel ruled on the issue of the House's standing, and he expected the circuit to rule "expeditiously."

In a court filing Tuesday, the House lawyers noted that two weeks had passed since McFadden had issued the stay, and that he had told the attorneys they could file a motion to lift the stay if they felt the D.C. Circuit's decision wasn't made quickly enough. The House team asked that he either rule on a motion to dismiss filed by the DOJ last year, or partially lift the stay and allow briefings on the merits to continue.

The lawyers also tied in arguments made by Trump's attorneys during the impeachment trial, in which they have argued the House should have gone to court to obtain further evidence before moving forward with articles of impeachment against the president. That conflicts with the DOJ's claims in several House lawsuits, including the one in McFadden's court, that the House can never go to court against the administration.

"In the impeachment trial, President Trump has contended, in no uncertain terms, that the House was required to pursue judicial enforcement of its subpoenas to various Executive Branch officials and that the Article III courts are available for that purpose. That flatly contradicts the position President Trump and the Justice Department (DOJ) have advanced in this case," the House lawyers wrote Tuesday.

They quoted statements made by several of Trump's lawyers during the Senate trial, including Jay Sekulow, Harvard Law's Alan Dershowitz and former independent counsel Kenneth Starr, in which they said the courts were the proper forum to oversee disputes between the legislative and executive branches.

"Former Judge Starr urged the House to '[g]o to court,' making clear that President Trump understands that the judges of this court stand ready to decide expeditiously the House's subpoena-enforcement cases," the House lawyers wrote, before quoting from Starr's arguments Monday on the Senate floor.

"President Trump is telling the Senate that cases like this one can and should be litigated in a highly expedited way, while here he argues that the court should delay," they added.

The House lawyers further argued that the lawsuit for Trump's federal tax returns "has been beset by delay." They noted that they filed the complaint in July and presented arguments on a motion to dismiss in November, but a decision was not issued before McFadden stayed the case.

The lawyers said that if McFadden did not take action soon, it "could seriously jeopardize the committee's ability to secure compliance with its demands for information and take whatever legislative and oversight steps it deems appropriate once it receives the material, before the end of this Congress."

McFadden had appeared ready to rule for the House over the DOJ's motion to dismiss at the November oral arguments, but said during a phone conference earlier this month that he didn't "think it makes sense for me to get out in front of" the D.C. Circuit's decision on whether the House can sue the Trump administration.

The House team protested the move during the phone conference; One attorney, Megan Barbero, labeled McFadden's thoughts on when the McGahn ruling will come down "really pure guesswork about what the D.C. Circuit will do and how long it will take them."

The House has previously seized on the discrepancy between the arguments made by Trump's impeachment counsel during the Senate trial and the ones by the DOJ lawyers arguing on behalf of Trump in the House lawsuits.

Douglas Letter, general counsel to the U.S. House of Representatives, arrives at the U.S. Capitol in Washington for the start of the Senate Impeachment trial against President Donald Trump, on Jan. 21, 2020.

House general counsel Douglas Letter pointed out the conflicting positions in letters last week to the D.C. Circuit panels overseeing the McGahn case and one seeking grand jury materials redacted from former special counsel Robert Mueller's report.

He did so again earlier Tuesday, highlighting Starr's claims that the Senate is operating as a court during the impeachment trial as evidence that impeachment is a judicial proceeding, one of the few times grand jury information can be released by a court. The DOJ lawyers have argued otherwise.

"We're in court. We're not just in court, with all due respect to the chief justice and the Supreme Court of the United States," Starr told the Senate on Monday. "We're in democracy's ultimate court."

The DOJ and Trump's attorneys have claimed that there is no space between the two arguments on when the House can go to court, including in a letter Tuesday to the D.C. Circuit panel overseeing the Mueller grand jury case.

"The committee's letters urging the court to take notice of what has occurred in the impeachment trial are anomalous for another reason," DOJ lawyer Mark Freeman wrote in that letter. "The extensive, ongoing debate in the Senate over what evidence the Senate should or should not consider in the trial underscores the oddity of the committee's view that federal courts, rather than the Senate itself, should decide whether there is a 'particularized need' for certain evidence."

 

Read more:

Ken Starr Warns Against Impeachment as Political Weapon, Urges Quick Acquittal of Trump

'Cannot Have It Both Ways': Doug Letter Criticizes Trump Lawyers for Contradictions on Impeachment

'Go Find a Lawyer, Somewhere': Schiff Slams Trump Impeachment Claims Rejected by Allies